Kerala High Court
Sudevan vs Madhavi on 26 May, 2025
2025:KER:37124
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
MONDAY, THE 26TH DAY OF MAY 2025 / 5TH JYAISHTA, 1947
RSA NO. 553 OF 2024
AGAINST THE JUDGMENT DATED 20.06.2024 IN AS NO.84
OF 2021 OF DISTRICT COURT & SESSIONS COURT, PALAKKAD
ARISING OUT OF THE ORDER DATED 17.12.2020 IN IA
No.2655/2016 IN FDIA NO.1640 OF 2015 IN O.S NO.86/2011
OF MUNSIFF COURT, CHITTUR
APPELLANT/APPELLANT IN A.S/RESPONDENT NO.1 IN
FD.I.A/PLAINTIFF IN O.S:
SUDEVAN
AGED 69 YEARS, S/O LATE CHAMI, PERINCHERY
HOUSE, THATHAMANGALAM VILLAGE, CHITTUR TALUK,
PALAKKAD DISTRICT, PIN - 678 102.
BY ADVS.
MANU VYASAN PETER
P.B.KRISHNAN (SR.)
P.B.SUBRAMANYAN
SABU GEORGE
B.ANUSREE
AISWARYA MOHAN
CHITRA JOHNSON
RESPONDENT/RESPONDENTS IN A.S/RESPONDENTS NO.3 TO 6, 8
TO 10 AND LRS OF RESPONDENT NO.1 IN FD.I.A/DEFENDANTS
NO.1 TO 5 AND LRS OF DEFENDANTS NO.1,6 AND 7 IN O.S:
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R.S.A Nos.553 of 2024
2
1 MADHAVI
AGED 78 YEARS. D/O LATE CHAMI, W/O VELAYUDHAN,
VALAYAL, THEKKINCHIRA, KOLLENGODE VILLAGE,
CHITTUR TALUK, PALAKKAD DISTRICT,
PIN - 678 506.
2 THANKA
AGED 72 YEARS, W/O VELAPPAN, D/O LATE CHAMI,
ALAMPARAMBU, THOTTAKKARA, THENARI, POLPULLY
VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT,
PIN - 678 552.
3 DEVAKI
AGED 70 YEARS, D/O LATE CHAMI, W/O SANKUNNI,
RAYARKALAM, PALAPPALLAM, CHITTUR VILLAGE,
CHITTUR TALUK, PALAKKAD DISTRICT,
PIN - 678 001.
4 CHANDRAN
AGED 67 YEARS, S/O LATE CHAMI, KOSAVANKODE,
CHAMBAKALAM, VADAVANNUR VILLAGE, CHITTUR TALUK,
PALAKKAD DISTRICT, PIN - 678 504.
5 VATSALA
AGED 50 YEARS, W/O LATE PRABHAKARAN, METTUKADA,
THATHAMANGLAM VILLAGE, CHITTUR TALUK,
PALAKKAD DISTRICT, PIN - 678 102.
6 PRAVEEN
AGED 29 YEARS
S/O LATE PRABHAKARAN, METTUKADA, THATHAMANGLAM
VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT, PIN
- 678102
7 PRASEETHA
AGED 27 YEARS, D/O LATE PRABHAKARAN,
METTUKADA, THATHAMANGALAM VILLAGE,
CHITTUR TALUK, PALAKKAD DISTRICT,
PIN - 678 102.
8 DHAIVANI
AGED 73 YEARS, W/O LATE K.C. VASU,
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R.S.A Nos.553 of 2024
3
MUKKANAMCHIRA, POKKUNI, VADAVANNUR VILLAGE,
CHITTUR TALUK, PALAKKAD DISTRICT,
PIN - 678 504.
9 MANIKANDAN
AGED 50 YEARS, S/O LATE K.C. VASU, KARIPPALI,
VADAVANNUR P.O., CHITTUR TALUK,
PALAKKAD DISTRICT, PIN - 678 504.
10 SUMITHRA
AGED 50 YEARS, D/O LATE K.C. VASU,
RESIDING AT 9/152, DHEBATTA ESTATE,
SAMRAJ P.O., UTHAKAMANDALAM, NEELGIRI,
TAMIL NADU, PIN - 643 204.
11 HAREENDRAN
AGED 46 YEARS, S/O LATE K.C. VASU,
RESIDING AT 2/273-1, VENKITTAMMAL COLONY,
SHENKALIPALAYAM, NGGO COLONY P.O.,
KOVAI - 22, TAMIL NADU, PIN - 641 022.
12 RAMESH
AGED 35 YEARS, S/O LATE K.C. VASU,
MUKKANAMCHIRA, POKKUNNI, VADAVANNUR VILLAGE,
CHITTUR TALUK, PALAKKAD DISTRICT,
PIN - 678 504.
13 SASIKALA
AGED 61 YEARS, W/O LATE UNNIKRISHNAN,
RESIDING AT KOSAVANGODE, CHAMBAKALAM,
VADAVANNUR VILLAGE, CHITTUR TALUK,
PALAKKAD DISTRICT, PIN - 678 504.
14 MILKA
AGED 35 YEARS, D/O LATE UNNIKRISHNAN,
RESIDING AT KOSAVANGODE, CHAMBAKALAM,
VADAVANNUR VILLAGE, CHITTUR TALUK,
PALAKKAD DISTRICT, PIN - 678 504.
15 MIDHUN
AGED 33 YEARS, S/O LATE UNNIKRISHNAN,
RESIDING AT KOSAVANGODE, CHAMBAKALAM,
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R.S.A Nos.553 of 2024
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VADAVANNUR VILLAGE, CHITTUR TALUK,
PALAKKAD DISTRICT, PIN - 678 504.
16 NIPHUN
AGED 30 YEARS, S/O LATE UNNIKRISHNAN,
RESIDING AT KOSAVANGODE, CHAMBAKALAM,
VADAVANNUR VILLAGE, CHITTUR TALUK,
PALAKKAD DISTRICT, PIN - 678 504.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 26.05.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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R.S.A Nos.553 of 2024
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EASWARAN S., J
--------------------------------
R.S.A No.553 of 2024
-------------------------------
Dated this the 26th day of May, 2025
JUDGMENT
This appeal is at the instance of the appellant,
who is aggrieved by the dismissal of the application
under Section 2 of the Partition Act. The appellant filed
I.A No.2655/2016 in FD I.A. No.1640/2015, contending
that the division of the property by metes and bounds by
the Advocate Commissioner in the final decree
proceedings is inequitable and therefore it is necessary
that the entire property be put in public auction and the
sale proceeds be distributed among the shares. The
Execution Court found that the Advocate Commissioner
had divided the property equally among all the sharers
and that the other sharers were not agreeable for the
suggestion made by the appellant that the entire
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property be sold and the proceeds be distributed among
other sharers. In doing so the Execution Court relied on
Ext.C1 and C1(a) report and found that the property to
be partitioned and allocated shares to each party though
is only 1.87 cents, all the sharers were allowed with the
same extent.
2. The main reason for the appellant to file
the aforesaid application was that he was not able to
continuously enjoy the property. On the material
evidence, the executing court found that the allocation of
the property made by Advocate Commissioner as per C1
and C1(a) was equitable and that did not violate the
preliminary decree in any manner. Though, the Appellant
carried forward the same in appeal, the same was also
dismissed and hence the present appeal.
3. Heard Shri. S.V.Balakrishnan, the learned
Senior Counsel appearing on behalf of the appellant
assisted by B.Anusree.
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4. Shri. S.V.Balakrishnan, the learned Senior
Counsel would submit that with reference to C1(a) plan,
though all the parties are allotted equal share by the
Advocate Commissioner, the appellant has been allotted
the property marked as plot No.E, where there is a well.
When the circumference of the well is taken into
consideration, there will be hardly any sufficient space to
enter into the property.
5. On consideration of the submission raised
on behalf of he appellant, this Court finds that the
contentions raised by the appellant cannot be a ground to
entertain an application under Section 2 of the partition
Act. Of course, an application under Section 2 of the
Partition Act will lie, if the Executing Court finds that the
division of the property done by the Advocate
Commissioner during the final decree proceedings is
inequitable and violates the mandates of the preliminary
decree. In the present case, such situation is not
available. Both courts have found that it is the appellant
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alone, who is seeking for orders under Section 2 read
with Section 4 of the Partition Act for the sale of the
entire plaint schedule properties and to distribute the
proceeds among the sharers. Since there is no unison
among the sharers for invoking the provisions of the
Partition Act, this Court is of the considered view that a
sole sharer cannot maintain such an application, wherein
admittedly he is not able to show that the division made
by the Advocate Commissioner is in any manner
inequitable. Viewed in the aforesaid perspective, this
Court finds that there is no jurisdictional error or
interference in the orders passed by the Executing Court
as confirmed by the First Appellate Court.
Hence no substantial question of law arises for
considering the appeal. Therefore, the appeal fails and
the same is dismissed.
Sd/-
EASWARAN S.
JUDGE
AMR
